Punjab-Haryana High Court
Surender Pal vs Raj Singh And Ors on 3 August, 2016
CM No.10339-CII of 2016 in CR No.1845 of 2013 1
258 CM No.10339-CII of 2016 in
CR No.1845 of 2013
SURENDER PAL VS RAJ SINGH AND ORS
Present: Mr. Vikas Bahl, Sr. Advocate with
Ms. Priyanka Dalal, Advocate
for the applicant-petitioner.
Mr. Amit Latawa, Advocate for
Mr. Dhruv Kapur, Advocate
for the non-applicant-respondents.
***
[1]. Applicant-petitioner seeks to get the order dated 09.02.2016 passed by this Court recalled whereby the revision petition was dismissed for non-prosecution. [2]. Learned counsel for the applicant-petitioner contends that notice of motion was issued in the revision petition on 20.03.2013 and the trial Court was directed to adjourn the case beyond the date fixed by this Court. Thereafter, the interim order was ordered to continue on 03.05.2013, when learned counsel for the respondents appeared in the case. Thereafter, learned counsel for the respondents prayed for time and case was adjourned on his request thereby granting last opportunity to him for placing on record certain documents and reply on behalf of respondents. The case was adjourned for 22.10.2013. On the adjourned date, respondents did not comply with the requirement of placing on record any document or reply. The case was adjourned to 13.01.2014 on the request of learned 1 of 6 ::: Downloaded on - 14-09-2016 05:24:25 ::: CM No.10339-CII of 2016 in CR No.1845 of 2013 2 counsel appearing for the respondents. The case was further adjourned to 22.04.2014 at the behest of respondents and thereafter, it was adjourned to 10.02.2015 for arguments. Learned counsel for the petitioner sought adjournment only for once on 10.02.2015 and the case was listed for 23.07.2015. Again learned counsel for the respondents sought time and the case was listed for 08.12.2015.
[3]. On 08.12.2015, this Court passed the following order:-
"Although I dictated an order modifying the impugned order in open Court, I am of the view, further clarifications are necessary and hence I reopen the case suo motu, recall the order and post it for fresh arguments on 15.12.2015.
Registry to inform the counsel for the parties."
[4]. Since the case was posted for fresh arguments for 15.12.2015, learned counsel for the petitioner could not ascertain the date and therefore, he could not appear on the date fixed and the following order was passed on 15.12.2015:-
"Case is re-opened and posted for fresh orders.
Adjourned to 09.02.2016. Registry to inform the counsel for the petitioner."
[5]. On 09.02.2016, the Court was pleased to pass the order dismissing the petition for non-prosecution as none 2 of 6 ::: Downloaded on - 14-09-2016 05:24:26 ::: CM No.10339-CII of 2016 in CR No.1845 of 2013 3 appeared on behalf of petitioner.
[6]. The application for restoration of the appeal came to be filed on 10.03.2016 through Mr. Ashwani Talwar learned counsel for the petitioner. Since Mr. Ashwani Talwar, Advocate is indisposed, therefore, this application came to be prosecuted by the present counsel for the petitioner. Learned counsel by referring number of interlocutory orders passed by this Court from time to time contended that non-appearance on behalf of learned counsel for the petitioner was unintentional and learned counsel was prosecuting the case throughout diligently and case was being adjourned only at the behest of learned counsel for the respondents. On 08.12.2015, since the Court was to pronounce the order, but the same was listed for fresh arguments on 15.12.2015. Due to misconception of fact, the same could not be ascertained and the learned counsel for the petitioner remained absent on 15.12.2015. Since the nature of order dated 15.12.2015 could not be known to learned counsel, he could not appear on 09.02.2016 as well. According to learned counsel for the applicant-petitioner, the omission on the part of the applicant-petitioner is not such that would warrant dismissal of the application for restoration of the case. The application itself was filed on 10.03.2016 along with affidavit of the petitioner. There was a delay of 3 days in moving the 3 of 6 ::: Downloaded on - 14-09-2016 05:24:26 ::: CM No.10339-CII of 2016 in CR No.1845 of 2013 4 application for restoration of the petition which according to learned counsel for the applicant-petitioner can be condoned without moving application for condonation of delay and in view of averments made in the application for restoration. [7]. The reliance was placed upon Universal Builders and Contractors Vs. Sheila Singh Uppal and others, 2009(2) PLR (Delhi) 47 and Nand Singh and Estate Officer, 1992(2) R.R.R. 516 wherein it was held that filing of application in writing under Section 5 of limitation Act is not essential. Delay can be condoned even on oral application if sufficient cause for causing delay is shown by the party. According to learned counsel, filing of application with delay of 3 days was not such omission as would warrant dismissal of the same in the absence of application under Section 5 of the Limitation Act. [8]. Per contra, learned counsel for the respondents relied upon State of Rajasthan Vs. Shankar Lal, 2010(3) SLR 703 to contend that in case of no sufficiency of cause shown by the applicant for restoration of appeal, the application has to be rejected. Evidently, the said case was relating to filing of application for restoration in which sufficient cause was not given for restoration of the appeal, whereas in the instant case, various interlocutory orders on record can be taken note of to observe that the applicant was pursuing his case diligently and 4 of 6 ::: Downloaded on - 14-09-2016 05:24:26 ::: CM No.10339-CII of 2016 in CR No.1845 of 2013 5 his non appearance on the date fixed as noticed in earlier part of order was not intentional. The present case cannot be equated with that of cited case.
[9]. Learned counsel further relied upon Jai Pal and another Vs. Harjeet Kaur and others, 2016(1) PLR 113 to contend that the present revision petition be not restored. In the aforesaid case, the observations were made keeping in view the merit of the case. The conduct of the parties involved therein were such that they did not want to pursue the case any more. No general principle of law has been enunciated. The said judgment was applicable only in the facts and circumstances of the said case in which conduct of the parties was highlighted with reference to their statements made from time to time. Learned counsel also cited Ruldu Singh Vs. Mohinder Kaur, 2009(2) Law Herald 1306. This case rather supports the cause of applicant for restoration of petition subject to payment of costs.
[10]. After considering the rival contentions, I am of the view that the merit of the case cannot be sacrificed on the alter of technicalities. The application for restoration of the case was filed on 10/11.03.2016 which was delayed by 3 days only. On showing sufficiency of cause for non-appearance, the said delay can be condoned even in the absence of application under 5 of 6 ::: Downloaded on - 14-09-2016 05:24:26 ::: CM No.10339-CII of 2016 in CR No.1845 of 2013 6 Section 5 of the Limitation Act. Even otherwise, cause of justice should not be allowed to be defeated at the threshold of such technicalities. The delay of 3 days in moving such application, in considered opinion of this Court has to be condoned on oral request of the learned counsel for the applicant-petitioner. Delay of 3 days is accordingly condoned and the order dated 09.02.2016 is hereby recalled, thereby restoring the revision petition to its original number, subject to payment of cost of Rs.10,000/- to be deposited in High Court Legal Services Authority within a period of two weeks from the date of pronouncement of the order. Payment of cost would be a condition precedent for listing this case for hearing before the Court.
This application is accordingly disposed of. 03.08.2016 (RAJ MOHAN SINGH) Prince JUDGE 6 of 6 ::: Downloaded on - 14-09-2016 05:24:26 :::